MEMORANDUM ORDER

This action for declaratory and injunctive relief is
before me on the parties' cross-motions for summary judgment. The 13
member of the District of Columbia city Council have sued the Mayor of
the District, seeking to require him to implement a Council-enacted
provision that would require the incumbent Inspector General of the
District to vacate his position. The parties agree that there are no
material facts in dispute, and that the case is appropriately resolved
by declaratory judgment.

For the reasons stated in this Memorandum Order, the
defendant Mayor's Motion for Summary Judgment will be GRANTED. As
explained more fully below, the section of the statute that applies to
the incumbent Inspector General is declared to be void, on the ground
that it violates principles of separation of powers.

Background

Earlier this year, the District of Columbia Council
enacted measures amending D.C. Code § 2-302.08 (2001), which
establishes and describes the office of the District's Inspector General.1 The measures (which I will refer to as
"the 2003 IG Act" or simply as "the Act") changed
the job qualifications for. the post of Inspector General by adding
new requirements to the existing ones. Notably, most of the new
requirements are ones that the incumbent Inspector General, Charles
Maddox, does not meet. Of equal significance, the amendments, which were
intended to take effect immediately, make the new qualifications
applicable to the incumbent. In effect, then, the legislation would
require Mr. Maddox to step down from his post.

The Mayor vetoed the measures. The Council then overrode
the vetoes. Ordinarily, of course, that would have ended the matter: the
legislation would have gone into effect, and Mr. Maddox would have been
required to vacate his position as of June 1, 2003 (the effective date
of the pertinent section of the Act). On May 30, 2003, however, the
Mayor informed the Council that he had advised Mr. Maddox to remain in
his job, despite the new legislation, on the ground that the legislation was null and void because
it violated separation of powers principles.

This lawsuit followed. The Councilmember plaintiffs
charge that the Mayor has acted beyond his executive authority, and in
derogation of their legislative authority, by effectively refusing to
implement the 2003 IG Act. They contend that the Act is a classic
legislative action, the product of the Council's oversight
responsibilities, and that it is simply intended to improve the
effectiveness of the Inspector General's Office by revising and
strengthening the qualifications required for the person who heads it. In
their view, if the new qualifications have the effect of forcing the
incumbent to resign because he does not meet them, then this effect,
while incidental to the legislation, is nevertheless a proper and
salutary result of it. Once the Council concluded that new
qualifications for the Inspector General were vital to the effective
functioning of the agency, they reason, it would have been senseless for
the changes to sit unimplemented, and the agency presumably to stagnate,
while waiting two more years for Mr. Maddox's term to expire.

The defendant Mayor counters that the legislation is void
and so need not be enforced. He argues that ousting Mr. Maddox, far from
being an "incidental effect" of the 2003 IG Act, is in fact
its central and animating purpose, as well as its most immediate effect.
This, he argues, is beyond the Council's power: Mr. Maddox is an
executive appointee and is subject to removal "only for cause by
the Mayor," D. C. Code § 2-302.08(a)(1)(A). The Mayor emphasizes,
moreover, that the executive's removal power is grounded in basic
separation of powers principles. Accordingly, he argues, at least the
section of the Act that subjects the incumbent to the new qualifications
encroaches impermissibly on that core executive power.

Each side, then, says that the other's actions exceed its
authority under the District's fundamental separation of powers
structure.2 In an earlier ruling, I concluded that the Councilmember
plaintiffs have standing to pursue this lawsuit, on the theory that the
Mayor's actions have nullified their votes as legislators. Order
of June 18, 2003. The parties filed cross-motions for summary judgment on the merits,
and oppositions. I heard oral argument on July 10, 2003. As noted, the
parties agree that the case can now be decided on the cross-motions, by
means of a declaratory judgment. See McIntosh v. Washington, 395 A.2d
744, 748-49 (D. C. 1978).3

The Office Of The Inspector General

Section 2-302.08 of the D. C. Code contains the
provisions that establish and set the duties of the office of Inspector
General. In its current form (that is, before the 2003 IG Act), the
statute generally directs the Office to perform independent audits,
inspections, and investigations of District departments and agencies; to
make recommendations for combating corruption, mismanagement, waste,
fraud, and the like; and to report to other government components. The
statute specifies that the Office of the Inspector General is created
"within the executive branch" of the District's government;
that the Inspector General "shall be appointed by the Mayor with
the advice and consent of the Council"; and that he "shall be
subject to removal only for cause by the Mayor." D.C. Code §
2-302.08(a)(1)(A), (C). The appointment is for a six-year term,
renewable without limitation.

Before the amendments at issue here, the only
qualifications for the office of Inspector General were those set out in
subsection (a)(1)(D) of section 2-302.08. They are these: "The Inspector General shall be appointed without regard to
party affiliation and solely on the basis of integrity and demonstrated
ability in accounting, auditing, financial management analysis, public
administration, or investigations." The incumbent Inspector
General, Mr. Maddox, was appointed by the Mayor to a six-year term in
May 1999.

The 2003 IG Act works several changes to this law, all
concerning who may hold the office and under what circumstances. Most
pertinent to this case, the Act prescribes significant new job
qualifications for the Inspector General. Subsection (a)(1)(D) is
amended to add that the officeholder must have at least seven years'
supervisory or management experience, as well as seven years' experience
in one of the relevant fields, which now would include "law"
as another alternative to "accounting, auditing, financial
management analysis, public administration, or investigations." In
addition, the Act adds a new subsection, (a)(1)(D-i), which is the
provision at issue here. This new subsection requires that the Inspector
General either (1) be a graduate of an accredited law school, have been
a member of the D.C. Bar for seven years, and have seven years'
experience practicing law, or (2) have been licensed as a certified
public accountant for seven years and have seven years' experience in accounting, tax consulting, or financial
consulting.4
Most importantly, the new subsection also provides that its requirements shall apply to the
incumbent: "(A] person who holds the position of Inspector General and who does not meet the
requirements [of subsection (a)(1)(D-i)] on June 1, 2003, shall not continue to hold the
position." There is no dispute that the current Inspector General,
Mr. Maddox, does not meet the subsection (a)(1)(D-i) qualifications.

Analysis

Under the District's-separation of powers structure, the
legislative power of the District government is vested in the city
council. D. C. Code § 1-204.04(a). The Council is granted statutory
authority to "create, abolish, or organize any office, agency,
department, or instrumentality of the government of the District, and to
define the powers, duties, and responsibilities" of any such
office. Id. § 1-204.04(b). Cases from other jurisdictions establish
that in most instances this legislative authority includes the power to
specify the qualifications that an executive appointee to such an office
must possess. See, e.g, Goodrich v. Mitchell, 75 P. 1034, 1035 (Kan.
1904); State ex rel. Butz v. Marion Circuit Court, 72 N.E.2d 225, 230 (Ind. 1947);
State ex
rel. Associated Master Barbers & Beauticians v. Eischen, 76 N.W.2d
385 (Minn. 1956); Fair Housing Council, Inc., v. New Jersey Real Estate
Comm., 358 A.2d 221, 223 (N.J. Super. Ct. App. Div.), cert. denied, 366
A.2d 681 (N.J. 1976). The defendant Mayor does not contest the Council's
authority to set such qualifications, and makes no serious challenge
here to the reasonableness of the newly enacted qualifications
themselves.

For all its powers to affect the structure and
responsibilities of an executive branch office, and even to require
certain qualifications for the officeholder, a legislature generally
cannot remove that officeholder once he or she is appointed. The power
to appoint executive officeholders - and the reciprocal power to remove
them - is vested exclusively in the executive; it is a principal aspect of the executive
function. Myers v. United States, 272 U.S. 52, 122 (1926). The Supreme
Court has struck down statutory enactments that invaded or compromised
that prerogative by involving Congress in the removal of officials
exercising executive powers. See, e.g., id. at 176 (statute
unconstitutionally conditioned removal of certain postmasters on advice
and consent of the Senate); Bowsher v. Synar, 478 U.S. 714, 733-34
(1986) (statute unconstitutionally conferred executive powers on
Comptroller General, who is removable by Congress). The reasons for this
sharp demarcation are not hard to discern. As the Court observed in
Bowsher, "[t]he Constitution does not contemplate an active role
for Congress in the supervision of officers charged with the execution
of the laws it enacts." 478 U.S. at 722. Accordingly, "[a]
direct congressional role in the removal of officers charged with the
execution of the laws . . . is inconsistent with separation of
powers." Id. at 723. If this separation were not observed, the
legislature "could simply remove, or threaten to remove, an officer
for executing the laws in any fashion found to be unsatisfactory to [the
legislature]." Id. at 726. Such a result would be
"constitutionally impermissible." Id. at 727.

In practice, nevertheless, this nominally strict
assignment of removal power to the executive branch is given some
necessary flexibility. The principle is not always easy to apply in a
complex world, and not every apparent violation of it is significant
enough to warrant judicial action. The proper separation of powers
inquiry therefore requires examining whether the statute, taken as a
whole, " unduly interfer[es]" with the executive role.
Morrison v. Olson, 487 U.S. 654, 693 (1988). The test thus has a
pragmatic aspect given the need to "integrate the dispersed powers
into a workable government." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J.,
concurring). This "flexible understanding" of separation of
powers, Mistretta v. United States, 488 U.S. 361, 381 (1989), focuses
not on any harmless commingling of function or trivial blurrings of the
line, but on serious dangers of "encroachment or aggrandizement of
one branch at the expense of the other." Buckley v. Valeo, 424 U.S.
1, 122 (1976). Provisions of law that either "accrete to a single
Branch powers more appropriately diffused among separate Branches,"
or that "undermine the authority and independence" of a
coordinate branch, violate the separation of powers. Mistretta, 488 U.S.
at 382.

The plaintiffs here acknowledge that they believe Mr.
Maddox should be removed from his office. They deny any ad hominem or
invidious motivation, and insist on calling his removal an
"incidental effect" of their enactment, but they do not
conceal their desire to see him go. In their pleadings they state that
"the incumbent's unsatisfactory performance served as a
catalyst" for their review of the Inspector General's office.
Plaintiffs' Motion, at 23. They reason that once they "had
determined . . . that the Inspector General was not performing
capably," they were virtually duty-bound to try to arrange his
removal: it would have been "an abdication of the Council's
paramount responsibility to the public" for the Council to have
"allow[ed] a person it considers unqualified to continue to hold
office." Id. at 25. Plainly, removing Mr. Maddox was at least one
of the purposes of the 2003 IG Act, however much plaintiffs characterize
it as "incidental," and the Council crafted a measure that
would accomplish that goal. By implication at least, the plaintiffs
assert that given the public need, it was a good and proper thing to do,
and that this justifies or excuses any temporary appropriation of
executive powers.

This argument has a certain plausibility. In fact, although
plaintiffs present it as an appeal more to common sense and good
government than to legal principles, it does draw some support from
statements in the caselaw. In Nixon v. Administrator of General
Services, 433 U.S. 425 (1977), the Supreme Court described its
separation of powers inquiry as focusing, first, on "the extent to
which [a statute] prevents the Executive Branch from accomplishing its
constitutionally assigned functions," and then, if there is a
danger of such disruption, on "whether that impact is justified by
an overriding need to promote objectives within the constitutional
authority of [the legislature]." Id. at 443. Here, the plaintiffs
presumably would argue that they faced an "overriding need" to
"promote [the] objective" of immediately improving the
performance of the Inspector General's office, and that the resulting
intrusion into executive powers was minimal. In this view, it would
actually undermine the entire legislative goal not to apply the new
qualifications to an incumbent whose current term extends well into the
future.

I conclude, however, that this argument fails. To be
sure, there is no separation of powers principle that barred the Council
from examining Mr. Maddox's performance in office. It would be slightly
absurd, in fact, to suggest that a legislative body, in carrying out its
oversight responsibilities toward-a particular. agency, could not
properly consider how an incumbent officeholder was doing his job. It is
equally unobjectionable for that legislature to consider its evaluation
of the incumbent in crafting legislation affecting the agency, including
changes to the qualifications of the officeholder. The question,
however, is whether the Council could then apply those reformed
qualifications, not just to all future occupants of the office, but to
that same incumbent, forcing him to relinquish his appointed position.

Reforming the Inspector General's office is certainly an
"objective[] within the authority of [the Council)." But it does not necessarily follow
that accomplishing it immediately specifically by removing an incumbent whom the Council
has decided is unqualified to hold office - is therefore also a legitimate legislative
objective. In a system of separated powers, there will always be urgent and important objectives that
simply cannot be addressed by a given branch of government, or that can be addressed in
some ways, but not in others. It is no answer to this to say that the legislature was
acting in the public good, or that it was pursuing a pressing
governmental need in the face of dereliction by another branch. The
Supreme Court cautioned against the lure of such justifications when it
warned that "[t]he hydraulic pressure inherent within each of the
separate Branches to exceed the outer limits of its power, even to
accomplish desirable objectives, must be resisted." INS v. Chadha,
462 U.S. 919, 951 (1983) (emphasis supplied). Moreover, accepting
plaintiffs' invitation to inspect their reasons for enacting this
statute would involve the Court in the tricky business of attempting to
divine the "true" motives of a collective legislative body.
Legislative intent (what they meant to do) can be difficult enough to
discover and interpret; legislative motivation (why they did it) lies entirely too deep. As
courts have long recognized, in any event, a judicial inquiry into a
legislature's motivation should ordinarily be avoided. Not only is such
an inquiry inherently speculative; it represents a significant intrusion
into the affairs of a coequal branch of government. See e.g., Village of
Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S.
252, 268 n.18 (1977); United States v. O'Brien, 391 U.S. 367, 383
(1968); McCray v. United States, 195 U.S. 27, 56 (1904).

Finally, and most directly to the point, good intentions
(or bad, for that matter) surely should have no bearing on a separation
of powers analysis. As one federal judge has observed, I have difficulty accepting the notion that congressional
[enactments] should turn on whether Congress had its heart in the right
place." In re Benny, 812 F.2d 1133, 1144 (9th Cir. 1987) (Norris,
J., concurring). Here, the Inspector General statute vests the power to
remove the incumbent, for "good cause" only, with the Mayor,
as the appointing Executive. D.C. Code § 2-302.08(a)(1)(A); see id §
1-204.22 (vesting executive power of the District in the Mayor). It does
not grant that power - for good cause, excellent cause, exigent cause,
or any other cause - to the Council. Nor could any statute do so, given
the separated powers of our government.

To resist this result, the plaintiffs point to a
scattering of cases from other states. None evaluated a statute exactly
like the one at issue here, but each did involve a separation of powers
challenge to legislation that had the actual effect of removing an
incumbent officeholder appointed by a different branch. See, e.g.,
Commonwealth ex rel. Kelley v.. Clark, 193 A. 634, 636-37 (Pa. 1937)
(holding unconstitutional a statute that abolished a city commission,
terminated the appointments of its members, and created a new commission
with different members; the new commission's duties were
indistinguishable from the old, rendering the statute a "mere
subterfuge" to oust the incumbents); State ex rel. Hammond v.
Maxfield, 132 P.2d 660, 664-66 (Utah 1942) (upholding a statute that
effectively merged an existing "road commission" into a new
"engineering commission" with broader duties, resulting in the
road commissioners losing their appointments; the incumbent's loss of
office was "merely an incident and not the. objective" of a "bona fide
scheme of reorganization"); Ahearn v. Bailey, 451 P.2d 30, 35-36 (Ariz. 1969) (holding unconstitutional
a portion of a statute that made :.:: ... certain organizational changes
to a state commission and increased the number of commissioners; the
offending section, however, shortened the term of the existing members;
since this had "no discernible relationship to the [reorganizational]
objects to be accomplished in the remainder of the enactment," it
constituted an impermissible removal of the incumbents).5

The basic pattern of these state removal cases is that
the legislature passed a statute that in effect abolished and then
recreated a government agency, or that substantially transformed the
agency, and as a part of the change terminated the appointments of the
incumbent officeholders. As I read these cases, they conclude that such
legislation can survive a separation of powers scrutiny if the enactment
in fact makes a substantial change in the agency's identity (such as by
combining it with another office as part of a genuine reorganization, or
by giving it entirely new duties) and if the termination of the
incumbent's appointment is logically related to the changes made to the
office. This is an interesting proposition, and makes logical sense. It
has no application, however, to this case. The 2003 IG Act plainly did
not make any changes at all to the office of the Inspector General,
substantial or not. Its sole effect, and its admitted purpose, is to
change the qualifications necessary to become the officeholder, without any
accompanying changes to the duties of the office.

Presumably perceiving this problem, the plaintiffs argue
for a significantly more generous reading of these state removal cases.
They derive the following principle: even if an "incidental
effect" of an enactment is to remove an incumbent officeholder, the
legislature has acted within its authority as long as the measure makes
"reasonable and substantial" changes to the "existing
scheme." Plaintiffs would include in this definition changes to any
aspect of the law governing the agency - including simply changes to the
qualifications for holding the office. Turning to our case, the newly
enacted qualifications for Inspector General concern training and
experience in the fields of law or accounting, which are obviously
related to the Inspector General's work. Unquestionably, these changes
are both reasonable and substantial. Therefore, according to plaintiffs'
test, the 2003 Act would pass muster, regardless of the fact that it
happens to apply to the incumbent.

This interpretation asks far too much of the handful of
cases on which it is based. Most obviously, none of those cases upheld a
statute making changes, "reasonable and substantial" or not,
to anything except the duties or structure of the subject agency itself.
Moreover, in the one case in which the only "substantial"
change was to the requirements or conditions under which an incumbent held
office, the
court invalidated the statute. See Ahearn v. Bailey, 341 P.2d at 36 (incumbent's term of
appointment cut from 6 to 3 years). Finally, there is no limit to the
principle that the plaintiffs propose. A legislature could arrogate to
itself any part of the executive appointment and removal power, as long
as it did so in a "substantial" way and for some plausible
reason. The plaintiffs have cited no cases that actually support the
standard they propose, and no sound reason to adopt that standard. They
also have cited no cases upholding a statute like the one involved here,
which makes no substantive change to the office, yet nevertheless
removes the incumbent officeholder.6

In the end, having considered all of the parties'
arguments, it is my judgment that the section of the 2003 IG Act that applies to the incumbent
cannot survive separation of powers scrutiny. Under the standards
articulated in Mistretta and similar cases, I conclude that the
provision at issue encroaches on a key part of the Mayor's authority,
namely his appointment and removal power. In fact, it usurps a portion
of it entirely. Moreover, the statute just as certainly accretes to the
Council powers it was never intended to have. Indeed, it is impossible
to escape the conclusion that what has happened here is precisely what
the Supreme Court foresaw in Bowsher: the Council has "remove[d]
... an officer for executing the laws in [a] fashion found to be
unsatisfactory" to the Council. 478 U.S. at 726. This is
impermissible, no matter how justified it may seem to the plaintiffs.

The Council states clearly what it sees as the
consequences of a decision invalidating this provision of the Act:
"Adoption of the Mayor's position would mean that the Council could
never impose new qualifications upon an incumbent officeholder if the
imposition of the otherwise valid qualifications would have the
incidental affect of forcing the incumbent to vacate the office."
Plaintiffs' Motion, at 25 (emphasis on original). This, however, is
exactly the point. It reflects the "hydraulic pressure"
within a legislative body to exceed the bounds of granted authority. INS
v. Chadha, 462 U.S. at 951. The Council seeks a power that is not
assigned to it: to remove an appointed officeholder, by imposing
stricter job qualifications, because it thinks the circumstances justify
such action. That, however, is affirmatively not the legislature's
decision to make. Instead, it is a power granted exclusively to the
executive. One can understand that the Council might chafe at this
restriction of its ability to do what it thinks is best for the city.
But it is a restriction carefully considered and deliberately built into
the design of our government.

Accordingly, it is this 1st day of August, 2003, hereby

ORDERED,

(1) that the defendant's Motion for Summary Judgment is
GRANTED;

(2) that the plaintiffs' Motion for Summary Judgment is
DENIED; and

(3) that the pertinent section of the Inspector General
Qualifications Amendment Act, which would be codified as section 2-302.08(a)(1)(D-1) of
the D.C. Code, is severed from the remainder of the Act and hereby declared void.

1. The three separate enactments were; the "Inspector
General Qualifications Emergency Amendment Act" (D. C. Act 15-78), 50 D.C. Reg. 3643 (2003); the
"Inspector General Qualifications Temporary Amendment Act"
(D.C. Act 15-79), 50 D.C. Reg, 3647 (2003);. and. the Inspector General
Qualifications Amendment Act" (D.C. Act 15-94), 50 D.C. Reg. 4651
(2003). The three acts are substantively identical, and differ only in
the timing of their effective dates and in their relationships to the
process by which Congress reviews and approves local legislation. In
effect, the changes were to become effective immediately, on an
emergency basis, and then to continue in place following congressional
approval.

2. See Wilson v. Kelly, 615 A.2d 229, 231 (D.C. 1992)
(concluding from "the familiar tripartite structure" of the District's government that the same separation of
powers principles that apply to the national government should control
the exercise of power here); D. C. Code § 1-301.44(b) (Council
"recognizes the principle of separation of powers in the structure
of the District of Columbia government").

3. The parties argue other grounds for relief , but these
require little discussion. The plaintiffs contend that because the Mayor
has a general statutory obligation to enforce the law, he is precluded
from resisting the applicability of this statute. This is difficult to
understand. Presumably, the Mayor could have filed suit against the
Council, seeking a declaratory judgment concerning the Act.
Instead, they sued him. I do not see how the Mayor could be barred from
making his arguments simply because he responded to a lawsuit instead of
initiating one.

The Mayor, for his part, contends that the case should be
dismissed because only a quo warranto proceeding could accomplish what
the plaintiffs seek. I disagree with his view of the relief sought in
this case. Moreover, in my earlier ruling on the question of standing, I
had meant to imply, in the course of ruling that the plaintiffs have standing to bring this action, that this is an
appropriate action to bring. If this was not clear, I make it explicit
now, and reject the defendant's argument.

4. Subsection (a)(1)(D-i) lists a third alternative,
which also concerns experience iii accounting, but which permits the
officeholder to hold a certificate from the District of Columbia Board
of Accounting instead of being a CPA. The defendant points out that this particular Board no
longer issues certificates, and has not for four years. Suffice it to
say that Mr. Maddox does not hold such a certificate.

5. Plaintiffs also rely on State ex rel. Maloney v. Wells,
112 N.W.2d 601 (S.D. 1961). The plaintiff was the former state
Employment Security Commissioner, appointed by the Governor. During her
term, the legislature amended the underlying statute, changing the post
to "Employment Security Commissioner and Counsel," adding
legal services to the officeholder's existing duties; and requiring that
the officeholder be a licensed and experienced attorney. attorney. The
state Supreme Court upheld the statute, concluding that the old office
was effectively abolished by tie new. Id. at 604. Superficially, then,
the case involved a legislative change in job qualifications that
resulted in an incumbent's losing her job. This seems close to the mark.
In fact, as the defendant points out, there are crucial differences.
Most important, the statute was no challenged or upheld on the ground
that the legislation violated separation of powers by invading the
executive's removal powers. Moreover, and unlike the present case, the
statute clearly changed the office itself by imposing new legal services
duties, and the new job qualifications related directly to the new
responsibilities of the office.

6. Interestingly, the defendant Mayor also places stock in
this same collection of cases, although for different reasons. He
emphasizes that in each case the court's reasoning explicitly placed
weight on the good or bad faith, or good or bad motives, of the
legislature. He then urges me to do the same here, and to conclude that
the Council's plain intent to oust Mr. Maddox should invalidate the Act.
As I previously concluded, however, more persuasive federal caselaw
frowns on judicial expeditions into the mind of the legislature. To the
extent the state cases hold otherwise, I decline to follow them.